Letter to the Tennessee Supreme Court

The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation. Set forth below is my letter to the Court that addresses one phrase in the proposed rule. NOTE: this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.

I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court. I respectfully request that the Court remove the phrase “In the face of society’s increasing litigiousness…” from the beginning of Section 1.03. This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.

Court filings in civil court of almost every type have decreased in Tennessee over the last three years. According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256. The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867. Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06. In 2007-08 there were a total of 843 of those applications. The data for 2008-09 is not yet publically available.

Years of public relations efforts by certain special interest groups mean that when lay people talk about other people being “litigious” they are usually referring to tort cases and worker’s compensation cases. The evidence reveals that the number of tort cases is also dropping. In 2005-06 the number of torts cases that were filed in Circuit Court totaled 11,691. In 2007-08, the number had dropped over 5% to 11,073 (the number includes medical malpractice cases, which are broken out separately in 2007-08 data).

Worker’s compensation case filings continue to fall. Chancery and Circuit filings for worker’s compensation actions were 8302 in 2005-06; in 2007-08 the total number of cases filed was only 7491, a drop of over 10%.

In addition, the number of civil trials continues to drop. There were only 439 civil jury trials in circuit court in Tennessee in 2005-06, but in 2007-08 the total dropped to 351, a 20% decline.

These numbers are not statistical flukes. Our 2007-08 Annual Statistics Report reveals that Circuit Court filings in that fiscal year were actually less than they were in 2001-02 (62,791 vs. 62,204). Chancery filings are down dramatically during that period, 69,257 to 63,256. I do not have access to more detailed information from the 2001-02 report but suspect that tort and compensation filings have decreased since the 2001-02 Report was issued.

This data concerning the number of civil court filings must be evaluated against Tennessee’s ever-increasing population. According to the United States Census Bureau, Tennessee had 6,215,000 people as of July, 2008. This is a 9% increase in population since April 1, 2000, when the population was 5,689,000. One would expect that as the population increases the number of lawsuits would also increase. The opposite has occurred in Tennessee in the last seven years. Thus, simple math tells us that the per capita number of lawsuits is decreasing at a rate that exceeds the decline in actual filings.

In summary, the statistics demonstrate that Tennesseans are not filing an increasing number of civil lawsuits. I think it fair to say that there is more complex litigation than ever before, a fact that surprises no one given the changes in our society. It is fair to say that criminal cases are increasing at a rate that out-paces the increase in population, but that fact is not a comment on the litigiousness of our society. However, it is not fair to say that Tennessee is becoming increasingly litigious when the only objective measure of “litigiousness” is the number of civil lawsuit filings and that number is decreasing in both real and per capita terms.

I fully realize that this is a minor point and the world will not come to an end if the introductory phrase in proposed Section 1.03 stays in the Rule. I also know that this phrase is included in the current version of the Rule and assume that in the rush to get a new rule in place before the new Commission starts its work not every word of the current rule was re-visited. However, it seems to me that (a) facts are facts; (b) the phrase as stated is factually incorrect; (c) leaving the phrase in the Rule adds absolutely nothing to the Rule; and (d) our courts should promote an accurate understanding of our judicial system, not perpetuate myths promoted by those that say our system does not work and who seek to gain an advantage by changing laws that make it even more difficult for ordinary people to file lawsuits.